Following the not guilty verdicts handed down by the Changhua District Court over a case involving a man touching a woman’s breast in public for 10 seconds and another involving a man who kissed a 13-year-old girl for five seconds, the Cabinet’s Commission on Women’s Rights Promotion (CWRP) has called on the Cabinet to show concern over how the Judicial Yuan handles such cases, to prevent other verdicts that go against public opinion.
Premier Liu Chao-shiuan (劉兆玄) readily agreed to the commission’s proposal and has scheduled a meeting with Judicial Yuan President Lai In-jaw (賴英照) to discuss his plans to improve the situation.
The CWRP’s proposal seeks to protect the rights and interests of women, and the Cabinet’s consent and cooperation were also based on a respect for the feelings of the public, but legally speaking, the move was aimed at the wrong target.
Not guilty verdicts were given out in these two cases because the prosecutors in charge brought public prosecution cases against the offenders and charged them with “coercive indecent assault” as listed under the Criminal Code. This meant that aside from considering the prerequisites for an “indecent assault,” the judge also had to take into account the prerequisites for the act to be considered “coercive” as stipulated in the law: by threats or violence, by inducing hypnosis, or by other means that are against a person.”
In other words, the reason why the two cases were not considered offenses of forced indecent assault is not because they only lasted five or 10 seconds, but because it is rather difficult to legally equate this kind of sexual harassment with “threats, violence or inducing hypnosis.”
Even if the judge held that the act of touching a person’s breast for 10 seconds was sufficient to arouse the assailant’s sexual desire and considered the case to be indecent assault, it would probably still be hard for him or her to hand down a guilty verdict.
Does this mean that female victims of sexual harassment can never obtain justice through legal action?
Although it is hard to convict a person who commits sexual harassment for “coercive indecent assault” under the Criminal Code, the offender can more easily be tried for violating the Sexual Harassment Prevention Act (性騷擾防治法).
The only stumbling block is that the judiciary cannot put a case of “covert sexual harassment” to trial under the act unless the victim presses charges. In consequence, these sexual harassment offenders could remain out of the law’s reach.
The verdicts of “not guilty” for these two cases have left the public with an impression that criminals can get away with anything.
But there are two possible outcomes to a scenario like this one: First, the judge could deliver a verdict against the law; or secondly, issue a verdict in accordance with a poorly written law.
The Cabinet now hopes that the Judicial Yuan can stop delivering rulings that are against the law.
However, the fundamental problem lies in the fact that the Criminal Code lacks any regulations for “ordinary” indecent assault.
Therefore, rather than going to the judiciary, the Cabinet should propose to amend regulations for offenses against sexual autonomy and sexual harassment in the Criminal Code to protect the rights and interests of victims, as well as preclude loopholes in the law that allow offenders to stay at large.
Chiang Ya-chi is a graduate student in the School of Law at the University of Leeds.
Translated by Ted Yang
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